by Paul Smith

The Bush administration is not the first presidency to railroad the constitution, but it is the first to do so with such a brazen sense of permanence. We are led to believe that in a “post-9/11 world,” as the tired cliché goes, the face of American militarism has radically changed, and we must therefore begin to curtail liberties at home to safeguard against the new strange and ubiquitous bogeymen known ambiguously as “terrorists.” Many would argue that the policies which have emerged over the past several years from this administration in the name of patriotism and fighting the “War on Terror” have shifted the paradigm of executive power in this country and have effectively gutted the constitution in startling ways.

 

The Bush administration represents what I like to call the “wicked weed.” I imagine this weed as a mutant thistle sage, a thorny flower-clustered pest sprouting from the middle of a rose bush in the White House Rose Garden. And with the benefit of hindsight we may find that we have been engulfed in a tangling, strangulating, gargantuan vine which has slowly enveloped the entire nation, like something out of B-grade horror flick from the 70’s, twisting wildly around the American crop like a massive right-wing boa constrictor.

 

This strangulation has and will continue to come in the form of stripping away civil liberties, marginalizing the Constitution, increasing the power of the executive branch, and therefore subverting checks and balances and undermining the separation of powers. Among the most obvious and egregious examples of these high crimes and misdemeanors committed by the wicked weed have come in the form of presidential signing statements.

 

Since the Regan administration, signing statements, which were once used as symbolic gestures, have become an excessive presidential tool, when upon signing a new bill into law, makes a written pronouncement usually modifying or exempting the executive branch from certain provisions by announcing vague constitutional challenges to the language employed in the bill. Bush often uses them essentially as a line-item veto, a tactic which some claim is causing a constitutional crisis in this country.

 

The reasoning for this being that the Constitution explicitly states in Article I Section 7 (The Presentment Clause) that a bill the president signs into law must be identical to the bill passed by the House and Senate. Therefore, one would infer the President has the option to either sign a bill or to veto it. The Constitution says nothing about the President having the authority to sign a bill into law and then declare that certain provisions of the bill do not apply to the executive branch or can be disregarded.

 

In terms of legal precedent, in 1998 the Supreme Court addressed this issue of whether or not the executive branch has “line item veto” authority in the case Clinton v. City of New York. This case arose when President Clinton attempted to cancel certain provisions of the Balanced Budget Act of 1997. The Court said in a 6-3 decision that the Constitution does not grant the President this authority, Justice Stephens in the majority opinion specifically citing the Presentment Clause.

 

President Bush, by invoking this authority which many constitutional scholars would argue he does not have, has essentially made the executive branch the interpreter of the law in a manner inconsistent with Congress’s intent, undermining and weakening the legislative branch. He has also made the executive branch the interpreter of the Constitution when it comes to legal review instead of the courts, undermining and weakening the judicial branch. In light of this, the American Bar Association in 2006 suggested that President Bush’s use of signing statements was “contrary to the rule of law and our constitutional system of separation of powers.”

“The means of defense against foreign danger historically have become the instruments of tyranny at home.”

                                                                                                        -James Madison

Bush has issued over 750 signing statements since taking office, many of them giving the executive branch new authority. And occasionally signing statements creep into judicial review of the law in curious ways. For instance, in the landmark Supreme Court case of 2006 Hamdan v. Rumsfeld, Justice Scalia in a dissenting opinion actually cited one of Bush’s signing statements as legal precedent. The Hamdan case decided whether detainees at Guantanamo Bay possess the right to have their case heard by the Supreme Court before they face a military commission and whether Congress has the authority to pass legislation denying the detainees this right.

Scalia noted the signing statement on the Detainee Treatment Act of 2005 that suggested “the constitutional limitations on judicial power” grant the executive branch the authority to incarcerate a detainee indefinitely. But, the majority opinion disagreed with Scalia, determining that the Court did have jurisdiction to hear cases brought by the detainees and that the military commissions violated both the Geneva Conventions and the Uniform Code of Military Justice. However, it was this decision in the Hamdan case that directly led to the controversial Military Commissions Act of 2006.

 

When signing statements can’t quite do the trick, Bush pressures Congress into passing an entire legislative package to sanction the apparent constitutional violations of his administration. The Military Commissions Act is in many ways perhaps the most hideous and dangerous piece of legislation ever passed in this country.

 

Drafted in the wake of the Hamdan decision, the Military Commissions Act essentially signs the death warrant to the writ of habeas corpus, the constitutional protection against unlawful imprisonment. The bill was passed in the context of bringing “terrorists” to justice without all those pesky impediments like the Geneva Convention and the Constitution. Provisions of the act deny detainees the right to challenge their detention if they are considered an “unlawful enemy combatant.”

 

The bill says a person is deemed an “unlawful enemy combatant” by a “status review tribunal or another competent tribunal established under the authority of the President or the Secretary of Defense.” However, many regard these “combatant status review tribunals” as a travesty of justice. Detainees are denied the right to see the evidence being presented against them and are almost always refused the right to call witnesses in their defense. They often do not even know with what crimes they are being charged.

 

The fact that many in Guantanamo Bay are likely innocent is indisputable, as several detainees have already been freed after years of imprisonment and perhaps torture. Some were simply caught “in the wrong place at the wrong time” in Afghanistan and sold for bounties to the Northern Alliance.

 

And is not only foreign citizens who are subject to “unlawful enemy combatant” status (see the case of Jose Padilla for a specific example). The “unlawful enemy combatant” status is defined so broadly that basically anyone the President deems a “terrorist” can be detained indefinitely. So, wave “good bye” to habeas corpus… because it has been engulfed by the wicked weed.

 

The great American novelist Sinclair Lewis once said, “When fascism comes to America it will be wrapped in the flag…” Whether that time has come to pass or has just begun to fruit is a matter of debate. But I hope most would agree that the seed has potentially been sown, the ovule germinated. And what grows here may be the most malignant sprout conceivable, a wicked weed growing wildly among the American crop, the harvest tainted, the yield toxic. And whether we elect to wait for our national autumn to learn what truly has been spoiled or whether we take heed of these augural signs of pestilence is a decision we all must brood.

 

However, I suggest we deliberate not idly, as this may ripen into pandemic proportions. No longer may we plead ignorance, as the warning signs have shown no ambiguity, this harbinger unmistakable. When the history books are written about this presidency, you will be able to say, “I was there… I was there when the seed did sprout… I was there when the crop turned black.” And if we cannot find a way to restore the Constitution we may all someday claim witness for when this wicked weed, this thistle sage, came not as a shrub clustered in flowers, but as a Bush wrapped in the flag.